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Appellate Law

North Carolina Appellate Blog

Highlights developments in the appellate courts that affect business interests in North Carolina.
By Sean E. Andrussier

Post Frequency: 5.9/day

Last Entry: March 19, 2016 at 15:47:00

BB&T Loses Fourth Circuit Tax Appeal Over LILO Transaction

Posted on April 29, 2008
Today in BB&T Corp. v. U.S. the Fourth Circuit upheld the IRS's disallowance of deductions that BB&T claimed for a "lease in/lease out" (LILO) transaction. (A LILO transaction involves a taxpayer leasing property from a tax-exempt entity while simultaneously leasing the property back to the owner, enabling the taxpayer to deduct the rental payments on its lease, amortize costs, and possibly deduct interest payments...

O'Connor-By-Designation Cases

Posted on April 23, 2008
This past week and a half the Fourth Circuit has begun issuing decisions in cases in which Retired Justice Sandra Day O'Connor sat by designation on the panel--cases argued the week of March 18. Today was the fourth such case issued (this one an unpublished FELA case)...

NC State Held Liable For Professor's Sexual Harassment

Posted on April 16, 2008
Yesterday, in Gonzales v. N.C. State Univ., the Court of Appeals (COA) upheld an order of the Industrial Comm'n finding NC State (NCSU) liable for negligence arising from a professor's sexual harassment of a student.Although there appeared to be a track record of complaints about him, plaintiff apparently relied heavily on the professor's alleged harassment of another woman at NCSU 10 years beforehand...

COA Holds That Stock Analyst's Report Isn't Libelous

Posted on April 15, 2008
Today in Nucor Corp. v. Prudential Equity Group, LLC, the Court of Appeals (COA) affirmed the dismissal of a libel per se action brought by Nucor against Prudential and one of its stock analysts, based on a report written by the analyst, which was distributed to investors...

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COA Issues Another Personal Jurisdiction Decision

Posted on April 15, 2008
Today in Eaker v. Gower the Court of Appeals (COA) reversed a trial court's finding of personal jurisdiction.First, the COA held that the verified complaint's allegation that defendant is a citizen and resident of N.C. was entitled to no deference, because the defendant submitted an affidavit (in support of her motion to dismiss for lack of personal jurisdiction) stating she's a citizen and resident of Florida, and plaintiff didn't counter that affidavit...

COA Holds Trial Court Erred In Striking Untimely Answer

Posted on April 15, 2008
Today in Carpenter v. Carpenter the Court of Appeals (COA) held that a failure to timely file an answer is not a proper ground for striking a pleading under Rule 12(f). A week and a half after the deadline passed for filing an answer to her complaint, Plaintiff moved for judgment on the pleadings...

COA Excuses Rule Violations

Posted on April 15, 2008
In decisions today the Court of Appeals (COA) excused rule violations, i.e., it didn't dismiss the appeals. In one case the appellant omitted a statement of the standard of review from his brief, thus violating Rule 12(b)(6). In another case the appellant failed to cite an assignment of error after stating the question presented in its argument, in violation of Rule 28(b)(6)...

COA Rejects Suit Over Property Sale

Posted on April 15, 2008
Today the COA rejected a lawsuit brought by a development company that had its contracts to purchase and sell property defeated when the sellers decided, unbeknownst to Plaintiff, to negotiate with and sell the property to persons with whom Plaintiff had contracted to sell the property...

COA Splits On Personal Jurisdiction Over Corporate Officer, Upholds Jurisdiction Over Parent On Veil-Piercing Allegations

Posted on April 15, 2008
Today the Court of Appeals, in a significant case, issued a split decision on personal jurisdiction over an officer of a foreign corporation, while unanimously agreeing that personal jurisdiction could be exercised over an affiliated corporation on a veil-piercing theory...

Today's NC Court of Appeals Decisions

Posted on April 15, 2008
The NC Court of Appeals (COA) released 20 published opinions today. Six are criminal cases. There are four dissents. Notably, the COA found error (i.e., reversed or vacated) in more than half the cases (11). Another tough day for trial court judges. More on these cases later.

NC SCT Reiterates: No Assignments Of Error Needed From Summary Judgment

Posted on April 14, 2008
On Friday the NC Supreme Court reiterated this: "This Court has long held, and the law has not been changed, that for purposes of an appeal from a trial court's entry of summary judgment for the prevailing party, the appealing party is not required under Rule 10(a) of the Rules of Appellate Procedure to make assignments of error for the reason that on appeal, review is necessarily limited to whether the trial court's conclusions as to whether there is a genuine issue of material fact and whether the moving party is entitled to judgment, both questions of law, were correct...

Divided NC SCT Rejects Suppression Of Evidence

Posted on April 14, 2008
On Friday, in a criminal case implicating the Fourth Amendment's prohibition against unreasonable searches and seizures, the NC Supreme Court split on an issue that had divided the Court of Appeals (COA) below: whether a defendant's 30-second delay at a traffic intersection after the light turned green gave rise to a reasonable, articulable suspicion that the defendant was engaged in criminal activity (namely that he was driving while impaired), thus justifying a traffic stop, which resulted in the police finding drugs...

NC Supreme Court Orders and Opinions Today

Posted on April 11, 2008
The NC Supreme Court released orders and opinions today. There are 8 opinions. Half are per curiams. Among the orders: the Court denied plaintiffs' appeal and PDR in the case brought to challenge the constitutionality of economic incentives received by Dell for locating a new manufacturing facility in North Carolina...

SCT Decisions This Week

Posted on April 08, 2008
The NC Supreme Court is scheduled to release orders and opinions this Friday April 11.

Summary Judgment During Discovery OK, Attorneys' Fees Using Wrong Legal Standard Not So Much

Posted on April 02, 2008
In Birmingham v. H & H Home Consultants and Design, Inc., the COA held that summary judgment during the pleadings and discovery phase was permissible, but that the award of attorneys' fees to the successful defendants of an unfair and deceptive trade practices claim using the standard for awarding such fees to successful plaintiffs was impermissible...

Worker's Intoxication Properly Barred Workers' Comp. Recovery

Posted on April 02, 2008
In Gratz v. Hill, the NC COA held yesterday that an employee's workers' comp. recovery was properly barred because the worker's intoxication was a cause for the injury.In Gratz, the plaintiff got a beer in the morning while with fellow workers on the way to a job that involved roof work...

COA Bars Double-Dipping With Admin. Appeal And Civil Suit

Posted on April 02, 2008
The COA yesterday held in Hentz v. Asheville City Board of Education that a party can't have two bites at the apple by bringing a law suit based on an administrative action while also appealing the action in the administrative realm.In Hentz, the plaintiff sought to challenge the School Board's decision to revoke her children's admission to Asheville's schools...

COA Upholds Contractual Limitation Of Liability

Posted on April 01, 2008
Today the Court of Appeals (COA) upheld a contractual limitation of liability clause which capped damages at $50,000. The case is Blaylock Grading Co., LLP v. Smith. Chief Judge Martin authored the decision.Defendants, an engineering company and its principal, entered into a contract with plaintiff, a grading company, to provide land surveying services...

COA Decisions Today

Posted on April 01, 2008
The Court of Appeals released decisions today. There are 16 published decisions. Half are criminal cases. No dissents. More on these cases later.

Fourth Circuit Rules For EEOC In Title VII Case Over Religiously Hostile Environment

Posted on March 31, 2008
Today the Fourth Circuit, in a opinion by Judge Wilkinson, ruled for the EEOC in a Title VII case brought on behalf of a Muslim employee. The case alleged a religiously hostile work environment in the aftermath of 9/11, through his termination in Feb...

Fourth Circuit Rules 2-1 For Defendant In SOX Whistelblower Case

Posted on March 24, 2008
Today, in Livingston v. Wyeth, Inc., the Fourth Circuit affirmed summary judgment for Wyeth in a "whistleblower retaliation" action under the Sarbanes-Oxley Act ("SOX"), 15 U.S.C. 1514A. The court was split. Judge Niemeyer wrote the majority decision...

NC COA Decisions Today

Posted on March 18, 2008
The NC Court of Appeals released 20 published decisions today. Five were criminal cases. There were two dissents. One of the appeals was dismissed for rule violations. Of the 19 appeals decided on the merits, 11 of them found some error entitling the appellants to some relief (a full or partial reversal, a vacatur, a remand, or a new trial)...

Split COA Upholds Lottery Act

Posted on March 18, 2008
Today in Heatherly v. State the Court of Appeals (COA) rejected a constitutional challenge to the State's Lottery Act, the legislation that created the lottery. Judge Wynn wrote the majority decision, joined by Judge Hunter. Judge Calabria dissented...

COA Holds Punitive Damages May Be Awarded For "Spite Fence"

Posted on March 18, 2008
Today in Austin v. Bald the Court of Appeals (COA) held that punitive damages may be awarded in a "spite fence" case. A spite fence is one that is of no beneficial use to the owner and that is erected and maintained solely for the purpose of annoying a neighbor...

COA: Lightning Strike Draws Workers' Comp Only If Employee Was At Increased Risk Of Lightning Strike

Posted on March 18, 2008
Today in Heatherly v. Hollingworth Co. the Court of Appeals (COA) dealt with a workers' comp claim of an employee injured by a lightning strike. Plaintiff, a drywall hanger, was on a job site high on a mountain, working in an unfinished garage that had no doors, when lightning struck, producing a jolt which knocked him back several feet in the air, causing him to break his hand in the fall...

COA Holds That LLC Manager Had No Authority To Institute Lawsuit By LLC

Posted on March 18, 2008
Today in Crouse v. Mineo the Court of Appeals (COA) dealt with a dispute between members of a two-lawyer firm, Mineo & Crouse, PLLC. The main issues before the COA concerned standing.Crouse, a 50% owner and member-manager of the firm, brought this suit in his own behalf and in the name of the LLC against Mineo, the other member-manager, alleging that Mineo misappropriated funds belonging to the firm or Crouse...

COA Decides Adverse Possession Case Involving Permissive Use Interrupting 20-Year Period

Posted on March 18, 2008
Today, in a split adverse-possession case, the Court of Appeals (COA) addressed what happens when, during the 20-year statutory adverse-possession period, the true owner of the land gives the hostile possessor permission to continue use. Does the grant of permission destroy the claim of adverse possession? It depends...

COA Dismisses Appeal For Rule Violations

Posted on March 18, 2008
Today the Court of Appeals (COA) dismissed an appeal because the appellant failed to comply with Appellate Rule 3 regarding the content of the notice on appeal, failed to include in her brief a statement of the standard of review, and "most significantly" failed to include in the record on appeal the certificate of service for the notice of appeal...

NC COA Decisions Due Tomorrow

Posted on March 17, 2008
Tomorrow the NC Court of Appeals (COA) will release opinions.This is a busy week of oral arguments at both the COA and the NC Supreme Court (SCT). The SCT hears arguments three days this week. The COA hears them four days this week, including two arguments at NCCU Law School on Wednesday.

President Nominates Fourth Circuit Judge From VA

Posted on March 14, 2008
Yesterday President Bush nominated Va Supreme Court Justice G. Steven Agee to the Fourth Circuit. This is for the seat to which the President had previously nominated Virginian Duncan Getchell, a nomination withdrawn after senate opposition.Both Virginia senators (Warner and Webb) are applauding the nomination...

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